Environmentalists Win Ruling In a Suit Against Developers

Published: June 11, 2004

WASHINGTON, June 10—
A federal judge on Thursday temporarily halted the government's practice of assuring private landowners that they will not face unanticipated requirements for protecting endangered species after a development project is approved.

The ruling, by Judge Emmet G. Sullivan of Federal District Court for the District of Columbia, was hailed by environmentalists as a breakthrough and criticized by home builders as a threat to private development.

At least for the next six months, the ruling bars federal agencies from providing blanket assurances under the Clinton-era ''no surprises'' rule. The rule, adopted in 1998, has given home builders, timber and mining companies and other developers some immunity against unforeseen twists in providing protection for species.

Judge Sullivan said that as a result of the rule the ''public has consistently been denied the opportunity'' to weigh in on decisions ''likely to have significant effects on public resources.''

His ruling came in a case brought by six organizations led by the Spirit of the Sage Council, a California group that represents American Indians and environmentalists. They challenged regulations of the Fish and Wildlife Service and the National Marine Fisheries Service, which protect endangered species.

Judge Sullivan gave the agencies until Dec. 10 to revise their regulations with more participation from the public.

Eric Glitzenstein, a Washington lawyer for the groups, called the ruling ''a message by the court that these policies have to be revisited and that a much higher emphasis has to be put on species protections.''

Mr. Glitzenstein said, ''We believe it's an opportunity to finally incorporate public and scientific input into the formulation of policies that may determine whether hundreds of species survive or go extinct.''

Government officials did not immediately respond to requests for comment. Judge Sullivan ruled in December that the Clinton administration had not followed proper procedures when setting the conditions when permits could be changed or revoked.

Duane Desiderio, a vice president of the National Association of Home Builders, described the ruling as a serious setback for his industry, especially because most species whose survival is imperiled are found on private property and near developed areas.

''The underlying thrust of the 'no surprises' rule is a deal is a deal,'' Mr. Desiderio said. ''This provision was intended to strike a balance: You can't stop all development, but you need to protect species.''

But without assurances against what Fish and Wildlife officials describe as unforeseen circumstances, home builders say that government reviews of endangered species requirements are practically meaningless.